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2007 BAR EXAMINATION
I
(10%)
What are the penalties that may be served
simultaneously?
SUGGESTED ANSWER:
The penalties that may be served simultaneously
are imprisonment/ destierro and:
1.
2.
3.
4.
5.
6.
Perpetual absolute disqualification;
Perpetual special disqualification;
Temporary absolute disqualification;
Temporary special disqualification;
Suspension from public office, the right to vote
and be voted for, and the right to follow a
profession or calling;
Fine; and any principal penalty with its accessory
penalties.
II
(10%)
Tuburcio asked Anastacio to join their group for a
"session". Thinking that it was for a mahjong session,
Anastacio agreed. Upon reachingTiburcio's house, Anastacio
discovered that it was actually a shabu session. At that
precise time, the place was raided by the police, and
Anastacio was among those arrested.
What crime can Anastacio be charged with, if any?
Explain your answer.
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SUGGESTED ANSWER:
Anastacio may not be charged of any crime.
Sec. 7 of Rep. Act 9165 on the Comprehensive
Dangerous Drugs of2002 punishes employees and visitors
ofa den, dive or resort where'dangerous drugs are used in
any form. But for a visitor of such place to commit the
crime, it is a requisite that he "is aware of the nature of
the place as such and shall knowingly visit the same."
These requisites are absent in the facts given.
III
(10%)
Jervis and Marlon asked their friend, Jonathan, to
help them rob a bank. Jervis and Marlon went inside the
bank, but were unable to get any money from the vault
because the same was protected by a time-delay mechanism.
They contented themselves with the customers' cellphones
and a total of P5,000 in cash. After they dashed out of the
bank and rushed into the car, Jonathan pulled the car out
of the curb, hitting a pedestrian which resulted in the
latter's death.
What crime or crimes did Jervis, Marlon and Jonathan
commit? Explain your answer.
SUGGESTED ANSWER:
Jervis and Marlon committed the crime of robbery,
while Jonathan committed the special complex crime of
robbery with homicide.
Jervis and Marlon are criminally liable for the
robbery only, because that.was the crime conspired upon
and actually committed by them, assuming that the
taking of the cellphones and the cash from the bank's
customers was effected with intimidation. They will not
incur liability for the death of the pedestrian because
they have nothing to do with it. Only Jonathan will incur
liability for the death of the pedestrian, aside from the
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robbery, because he alone brought about such death.
Although the death caused was not intentional but
accidental, it shall be a component of the special complex
crime ofrobberywith homicide because it was committed
in the course of the commission of the robbery.
ALTERNATIVE ANSWER:
Jervis, Marlon and Jonathan committed robbery
with homicide, because there was conspiracy among
them to commit the robbery and the death of the
pedestrian was caused on the occasion of the robbery.
Even though the death was accidental, it is enough that
such death was caused by any of the robbers' felonious act
and on the occasion of the commission of the robbery
(People v. Guiapar, 129 SCRA 539 [1984]).
IV
(10%)
Macky, a security guard, arrived home late one night
after rendering overtime. He was shocked to see Joy, his
wife, and Ken, his best friend, in the act of having sexual
intercourse. Macky pulled out his service gun and shot and
killed Ken. Macky was charged with murder for the death
of Ken.
The court found that Ken died under exceptional
circumstances and exonerated Macky of murder but
sentenced him to destierro, conformably with Article 24 7 of
the Revised Penal Code. The court also ordered Macky to pay
indemnity to the heirs of the victim in the amount of
P50,000.
(a) Did the court correctly order Mar::ky to pay
indemnity even though he was exonerated of
murder? Explain your answer.
SUGGESTED ANSWER:
(a) No, the court did not act correctly in ordering
the accused to indemnify the victim. Since the killing of
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Ken was committed under the exceptional circumstances
in Article 247, Revised Penal Code, it is the consensus
that no crime was committed in the light of the
pronouncement in People v. Cosicor(79 Phil. 672 [1947])
that banishment (destierro) is intended more for the
protection of the offender rather than as a penalty. Since
the civil liability under the Revised Penal Code is the
consequence of criminal liability, there would be no legal
basis for the award of in9.emnity when there is no criminal
liability.
ALTERNATIVE ANSWER:
Yes, because the crime punishable by destierro was
committed, which is death under exceptional
circumstances under Art. 247 of the Revised Penal Code.
(b)
While serving his sentence, Macky entered the
prohibited area and had a pot session with Ivy
(Joy's sister). Is Macky entitled to an
indeterminate sentence in case he is found guilty
of use of prohibited substances? Explain your
answer.
SUGGESTED ANSWER:
(b) No, Macky is not entitled to the benefit of the
Indeterminate Sentence Law (Act 4103, as amended) for
having evaded the sentence which banished or placed
him on destierrro. Sec. 2 of the said law expressly
provides that the law shall not apply to those who shall
have "evaded sentence".
ALTERNATIVEANSWER:
No, because the penalty for u,se of any dangerous
drug by a first offender is not _imprisonment but
rehabilitation in a government center for a minimum
period of six (6) months (Sec. 15, R.A. 9165). The
Indeterminate Sentence Law does not apply when the
penalty is imprisonment not exceeding one year.
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v
(10%)
(a) Distinguish between an accomplice and a
conspirafoi-.
SUGGESTED ANSWER:
(a) The distinctions between an accomplice and a
conspirator are:
1. An accomplice incurs criminal liability by
merely cooperating in the execution of the
crime without participating as a principal,
by prior or simultaneous acts; whereas a
conspirator participates in the commission
of a crime as a co-principal.
2. An accomplice incurs criminal liability in
an individual capacity by his act alone of
cooperating in the execution of the crime;
while a conspirator incurs criminal liability
not only for his individual acts in the
execution of the crime but also for the acts
of the other participants in the commission
of the crime collectively. The acts of the
other participants in the execution of the
crime are considered also as acts of a
conspirator for purposes of collective
criminal responsibility.
3. An accomplice participates in the execution
of a crime when the criminal design or plan
is already in place; whereas a conspirator
participates in the adoption or making of
the criminal design.
4. An accomplice is subjected to a penalty one
degree lower than that of a principal;
whereas a conspirator incurs the penalty of
a principal.
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(b)
What are the three (3) classes of offenders in the
crime of qualified seduction? Give an example or
each.
SUGGESTED ANSWER:
(b) The three ( 3) classes of offenders in the crime of
qualified seduction are:
1. Those who exercise moral influence over
the victim, such as a priest who acts as
spiritual adviser of the victim, or a teacher
in the school where the victim is enrolled;
2. A brother or ascendant by consanguinity of
the victim, such as her uncle; and
3. Those who are regarded as "domestic" in
relation to the victim, enjoying the
confidence and intimacy shared by members
of the same household, such as household
helpers and boarders living under the same
roof and with same household as the victim.
ALTERNATIVEANSWER:
The three (3) classes of offenders in the crime of
qualified seduction are:
1. Those who abuse their authority. Examples:
person in public authority, guardian, teacher or
a person who, in any capacity, is entrusted with
the education or custody of ~ woma,n seduced.
2.
3.
Those who abuse the confidence reposed on
them. Examples: priest, house servant,
domestics.
Those who abuse their relationship. Examples:
a brother who seduced his sister; ascendant who
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seduced his descendant. (Article 337, Revised
Penal Code)
VI
(10%)
What are the different acts of inciting to sedition?
SUGGESTED ANSWER:
The different acts which constitute the crime of
inciting to sedition are:
1.
2.
3.
4.
5.
Inciting others through speeches, writings,
banners and other media of representation to
commit acts which constitute sedition;
Uttering seditious words, speeches or circulating
scurrilous libels against the Government of the
Philippines or any of its duly constitutc:d
authorities, which tend to disturb or obstruct
the performance of official functions, or which
tend to incite others to cabal and meet for
unlawful purposes;
Inciting through the same media of
representation rebellious conspiracies or riots;
Stirring people to go against lawful authorities,
or disturb the peace and public order of the
community or of the Government; or
Knowingly concealing any of the aforestated
evil practices (Art. 142, Rev. Penal Code).
VII
(10%)
Eddie brought his son Randy to a local faith.healer
known as "Mother Hirnala." He was diagnosed by the
faith.healer as being possessed by an evil spirit. Eddie
thereupon authorized the conduct of a "treatment" calculated
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possession, and having committed the crimes with grave
abuse of confidence, it is qualified theft.
The falsification is a separate crime from the theft
because it was not committed as a necessary means to
commit the theft but resorted to only to hide, or conceal
the unlawful taking.
IX
(10%)
During a concert of Gary V., and in order to prevent the
crowd from rushing to the stage, Rafael Padilla (a security
guard) pointed his gun at the onrush of people. When the
crowd still pushed forward, Rafael fired his gun into the air
to scare them off. However, the bullet hit one of the metal
roof supports, ricocheted and then hit one of the stage crew
members, causing injuries which resulted in the latter's
confinement in a hospital for twelve days.
What crime/ s did Rafael commit? Explain your answer
SUGGESTED ANSWER:
The crime committed by Rafael is Simple Negligence
Resulting in Less Serious Physical Injuries. Rafael is a
security guard and was on duty when he discharged the
firearm. The dischai;ge of the firearm was not calculated
to cause alarm or danger but simply to ward off the unruly
crowd which persisted in pushing forward, thereby
challenging the duty he wast<;> fulfill there. The discharge
of the firearm, therefore, should neither constitute a
crime of Alarms and Scandal under Art. 155 of the
Revised Penal Code nor may such discharge amount to a
crime of Illegal Discharge of Firearms under Art. 254 of
the Code since it was not directed towards a particular
person when the firearm was discharged.
However, the physical injuries resulting from the
discharge of the firearm betrays a lack of precaution in a
situation where the danger to the discharge of the firearm
is not clearly manifest, thus considered as simple
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imprudence only. The crime committed is Simple
Imprudence Resulting In Less Serious Physical Injuries,
since the physical injuries required only twelve ( 12) days
of medical attention.
ALTERNATIVE ANSWER:
The crime is reckless imprudence resulting in less
serious physical injuries, because the discharge of the
firearm was not necessary under the circumstances and
therefore, Rafael should be aware of the possibility of
injuries that could result from such discharge of the
firearm.
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(10%)
Pinky was a lessee of a market stall owned by Giovanni.
When Pinky refused to pay her rental, Giovanni nailed some
wooden barricades on one of the sides of the rnarket stall and
posted this warning: "We have closed this portion of the door.
Do not open it or else something may happen to you."
What crime/:;; _did Giovanni commit, if any? Explain
your answer?
SUGGESTED ANSWER:
The crime committed by Giovanni is light coercion
under Art. 287 of the Rev. Penal Code, commonly referred
to as unjust vexation. Althop.gh what was done by
Giovanni could reasonably be assumed as a retaliation to
the lessee's refusal to pay rent, absent any clear violence
in the premises, such would not bring about a case of
grave coercion. The situation should be interpreted
liberally in favor of the offender. The rule of pro reo
precludes any finding for grave coercion, because it
would be against the offender.
The written warning which states "or else something
may happen to you" is so equivocal that it may not be
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to drive the "spirit" from the boy's body. Unfortunately, the
procedure conducted resulted in the boy's death.
The faithhealer and three others who were part of the
healing ritual \Vere charged with murder and convicted by
thf' lower court. If you were the appellate court Justice,
would you sustain the convictiop upon appeal? Explain yQur
answer.
SUGGESTED ANSWER:
No, the conviction for murder should not be sustained,
because there is no indication that the accused acted
with intent to kill Randy. On the contrary, the facts show
that the accused acted to "treat" the victim in a way of
driving the evil spirit which was believed to have
"possessed" him. Considering that proximate cause of
the victim's death was the healing ritual done by the
accused which is not recognized in law as legitimate, the
accused are criminally liable for the victim's death. As
they may have overdone the h e a l i ~ ~ ritm:'l" they
conducted on the victim's body, causing the latter's
death, although the intent to kill was absent, the accused
may be held criminally liable for Reckless Imprudence
Resulting in Homicide.
ALTERNATIVE ANSWER:
No, because none of the circumstances qualifying
the killing to murder in Art. 248 attended the crime.
The faithhealer and his co-accused should only be
liable for homicide, because they are not authorized by
law to practice medicine and were therefore acting illegally
although the wrongful act done was different from what
they intended.
VIII
(10%)
Fe is the managei- of a rice mill in Bulacan. In order to
support a gambling debt, Fe made it appear that the rice mill
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was earning less than it actually was by writing in a "talaan"
or ledger a figure lower than what vvas collected and paid by
their c:ustomers. Fe then pocketed the difference. What
crime/ s did Fe commit, if any? Explain your ans'wer.
SUGGESTED ANSWER:
If the "talaan" or ledger which Fe made to show a
falsehood was a private document, the only crime that Fe
committed was estafa thru abuse of confidence or
unfaithfulness. Criminal liability for falsification of a
private document does not arise without damage or at
least proof of intent !o cause damage. It cannot co-exist
with the crime of estafa which also essentially requires
damage or at least proof of intent to cause damage. Since
the "talaan" was falsified to cover-up or conceal the
misappropriation of the amount involved, whatever
damage or intent to cause damage attends the
falsification, it will be the same damage or intent to
cause damage that will attend the estafa.
If such "talaan" or ledger was a commercial
document, damage or proof of intent to cause damage is
not necessary. The falsification alone if done with intent
to pervert the truth, would bring about criminal liability
for falsification of a commercial document. Damage or
intent to cause damage, would sustain the estafa
independently of the falsification of the commercial
document. In this case, two (2) separate crimes are
committed; namely, estafa and falsification of the
commercial document. The falsification should not be
complexed with the estafa since it was not committed as
a necessary means to commit the estafa but rather
resorted to, to conceal or hide the misappropriation of the
amount she pocketed.
ALTERNATIVE ANSWER:
The crimes committed by Fe are theft and falsification
of private document because Fe's possession of the
proceeds of the rice mill was only physical, not juridical,
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interpreted as felonious. A crime is never presumed; it is
the contrary that is presumed.
ALTERNATIVE ANSWER:
The crim,e committed by Giovanni is grave coercion
because barricading one or'the sides of the market stall
was an act of violence deliberately done. It is not only an
act of unjust vexation or light coercion but of grave
coercion.
1.2
2006 BAR EXAMINATION
I
Motive is essential in the determination of the commission
of a crime and the .liabilities of the perpetrators.
What are the instances where proof of motive is not
essential or required lo justify conviction of an accused? Give
at least 3 instances. 5%
SUGGESTED ANSWER:
Proof of motive is not required -
a) Where the offender is positively identified or
b) has admitted the commission of the crime
(People v. Yurong, 133 SCRA 26 [19841 citing People v.
Realon, et. al., 94 SCRA 422 [1980]);
c) Where the crime committed is a malum
prohibitum; or
d) Where the crime is the product of culpa or
criminal negligence.
II
1. When can a Filipino citizen residing in this country
use an alias legally? Give 3 instances. 2.5%
2. Under what situations may a private person enter
any dwelling, residence, or other establishments without
being liable for trespass to dwelling? 2.5%
SUGGESTED ANSWER:
Yes, an alias may be legally used -
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